Court won't hear 'wardrobe malfunction' appeal

FILE - In this Feb. 1, 2004 file photo, singers Justin Timberlake and Janet Jackson are seen during their performance prior to a wardrobe malfunction during the half time performance at Super Bowl XXXVIII in Houston. The Supreme Court decided Friday not to consider reinstating the government's $550,000 fine on CBS for Janet Jackson's infamous breast-bearing "wardrobe malfunction" at the 2004 Super Bowl. (AP Photo/David Phillip, file)

The high court refused to hear an appeal from the Federal Communications Commission over the penalty.

The 3rd U.S. Circuit Court of Appeals twice had thrown out the fine. The second time came after the Supreme Court upheld the FCC's policy threatening fines against even one-time uses of curse words on live television.

The appeals court said FCC's policy of excusing fleeting instances of indecent words and images appeared to change without notice in March 2004, a month after Jackson's halftime act. The judges said that made the agency's action against CBS "arbitrary and capricious."

But now, the FCC clearly has abandoned its exception for fleeting expletives, Chief Justice John Roberts said.

"It is now clear that the brevity of an indecent broadcast — be it word or image — cannot immunize it from FCC censure," he said. "Any future 'wardrobe malfunctions' will not be protected on the ground relied on by the court below."

In addition, Roberts said that calling it a "wardrobe malfunction" when Justin Timberlake ripped away part of Jackson's bustier "strained the credulity of the public."

CBS said it was grateful for the court's decision.

"At every major turn of this process, the lower courts have sided with us," the network said in a statement. "And now that the Supreme Court has brought this matter to a close, we look forward to the FCC heeding the call for the very balanced enforcement which was the hallmark of the commission for many, many years."